November 14, 2004
Thanks to Will for inviting me to guest-blog, and to the other Crescattiers for tolerating me. Crescat is one of my very favorite blogs, so it's a thrill to contribute, if only for a few days.
For those of you who don't know me, I'm a Policy Analyst at the Cato Institute, where I've worked now for an entire glorious week. Previously, I was a Ph.D. student in Philosophy at the University of Maryland, where I remain until the end of this semester as a TA for an Ethical Theory course (and, oh, the papers I have to grade!). I decided to shelf the Ph.D. effort for the foreseeable future, as I had realized that I did not care to leave DC and become an Assistant Professor at the Southeastern Kentucky Polytechnic Arts and Mechanical Community College, or what have you. Indeed, I realized that the traditional academic life is not for me. So, instead, I'm aiming at becoming some sort of "public intellectual"-- the DC aspirational equivalent of moving to Hollywood and trying to "make it."
I've also worked at the Mercatus Center at George Mason U and the Institute for Humane Studies, wonderful institutions both. In fact, I received a huge portion of my education through IHS and Mercatus, which in some ways makes me luckier than all these Crescat folks with the kinds of fancy academic pedigrees that simple Northern Iowa grads, like me and the equally famous Kurt Warner, can only look upon with dumbfounded wonder.
Over on my blog The Fly Bottle it is, as we speak, Super November! I promised my readers that I would post three times a day if they would give me money. It worked! I won't, however, ask you for any money. It was a one time thing.
It's good to be here. I'll try not to bore you.
(P.S., Now that I am inside the Crescat sausage factory, I can report that they have an amazing surfeit of categories, including "Kisses," "Botany," and "Chickens, Chickens, Chickens." There is, however, no category suitable for an introductory post, so I will choose "Kazakhstan.")
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Listening to Nixon v Shrink Missouri Government, I was pleasantly surprised to hear Justice Thomas weigh in during Attorney General Nixon's rebuttal time with a line of tough questioning. Since the Court doesn't label most of those oral arguments with justices' names, it's rather difficult to know who asked the questions without hearing their voices.
Does anybody know of other oral arguments-- other than those in Virginia v. Black-- in which Justice Thomas asked questions of one of the attorneys? I'm sure there are lots, I just don't know what they are or of a methodical way to find them.
UPDATE: I'm pretty sure Justice Thomas speaks someplace in U.S. Airways v. Barnett, Apprendi v. NJ, and NASA v FLRA though I'm not yet sure where.
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I am happy to announce that Will Wilkinson of the Cato Institute, who blogs at The Fly Bottle will be visiting as a guest blogger this week. As per the usual procedure, I will let him do the rest of the introduction himself.
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Amber Taylor insists that those who don't kiss on the first date will be interpreted as uninterested. Ack! So much the worse for those who are shy, or merely very very reluctant to make bold moves that might be undesired. I think I remember some interesting discussion of when an un-desired kiss constitutes an assault but have forgotten the source.
The trouble is a vast heterogeneity of expectations and symbolic language. Miss Manners, for example, condumns not just un-requested first-date kisses, but also hugs [2/14/01]:
Dear Miss Manners:
Participation in a dating service has yielded me a dozen first dates in the past few months, and they have been wonderful fun. However, at the conclusion of the dates, the men typically want to hug.
While I believe their intent is innocent, I find the expectation of a hug from someone I have known for just a few hours to be both presumptuous and inappropriate, and I am growing increasingly uncomfortable with the situation.
When I try to preempt their gesture by extending my hand for a handshake, these men either overlook it, discount it or just open their arms and lean in, regardless of my reluctance.
What can I do to graciously decline these advances for a hug (and in some cases, a kiss, too) while letting the man know I've enjoyed his company and leaving the door open for a second date?
Many people now confuse a hug with a handshake. Almost as many as those who confuse a date with an assignation.
Miss Manners doesn't know which sort of confusion afflicts your new friends. Perhaps both. The two are not as mutually exclusive as logic might suggest.
But as you like these gentlemen anyway, she will not consider a solution that would permanently disabuse them of the desire to hug you. Reaching back to times that moved more slowly, she suggests that you jump back and say provocatively, "Oh dear, I never hug on the first date."
Until we have some sort of social focal point that guarantees a similar set of shared numbers, those who are greeted with a handshake or "hello" rather than pursed lips shouldn't feel discouraged.
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[J]ustice Scalia did the right thing, constitutionally speaking. Justice O'Connor said in her dissent: "What I have feared most has now come to pass: Over 20 years of sentencing reform are all but lost, and tens of thousands of criminal judgments are in jeopardy." Ibid. (O'Connor, J., dissenting). It seems ridiculous to me that this is even being taken into account; the Supreme Court sits to consider what the law means, not what the law should be.
Or, one could have put it as Judge Frank Easterbrook did:
[T]he Constitution is form; an appeal to "function" is a claim that something else would be better than the Constitution, which may be true but nevertheless isn't an admissible argument about interpretation of the structure we have. [22 Harv. J.L. & Pub. Pol'y 11]
I was originally going to conclude this post by noting that assertions like this are more contentious than they seem to admit, that a great many con law scholars (some of which, I'm sure, will be Mr. Cioe's teachers) believe in a perfection-seeking Constitution and interpretation (or a Posnerian pragmatic one).
But I take it back. I whiled away the morning reading William Eskridge's and Sanford Levinson's anthology, Constitutional Stupidities, Constitutional Tragedies, where they canvas a group of distinguished con law scholars for "Stupidities"-- provisions of the Constituion that yield the worst normative results (all slavery clauses put aside)-- and "Tragedies"-- Supreme Court cases that were rightly decided but unfortunately so.
While of course some of the professors do (unsurprisingly) wax a bit about true tragedy, and a few fight the premise, most of them-- even those with relatively non-interpretevist methodologies-- buy into the game and come up with some interesting answers.
David Strauss, who nonetheless signs up for the program, characterizes it thusly:
The implicit premise is that constitutional interpretation, if it is really faithfful to the Constitution, should not invariably lead to results that coinccide with the political views of the interpreter. It might be argued that the premise is perverse, that it is bizarre to celebrate a particular approach to the Constituion on the ground that such an approach would lead one to do (what one considers to be) unfair or unwise things. ... I do not think the premise is perverse.
Anyway, since the second half of this post thus derails the first, I'll sort of leave it here.
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